Today the US Supreme Court heard arguments on three cases related to discrimination against gay, trans and/or gender nonconforming people in the workplace, and specifically whether the language of Title VII of the Civil Rights Act of 1964 that forbids discrimination “on the basis of sex” also forbids discrimination on the basis of sexual orientation, gender presentation or trans identity. Arguments lasted for about two hours; a decision is expected by June of 2020. (The full argument transcript for Bostock can be read here, and for Harris here.)
As expected, there was some pushback even in arguments from conservative justices, with Alito arguing that an inclusive Title VII reading would essentially constitute ‘activism,’ and that “If the court said the law applied to gay workers, ‘we will be acting exactly like a legislature.'” Some believe that generally conservative Justice Gorsuch was at least open to considering the argument that sexual orientation is subject to discrimination on the basis of sex:
“…[Gorsuch] suggested with his questioning that he was sympathetic to the argument that the word “sex” necessarily includes sexual orientation as well as gender identity. “Wouldn’t an employer say that [the firing is] because he is a man attracted to other men?” Gorsuch asked of Jeffrey Harris, an attorney for Clayton County, Georgia, which was accused of firing a county employee who is gay.”
At the same time, Gorsuch (predictably) shared Alito’s concerns about “legislating,” telling ACLU lawyer David Cole during an exchange regarding how Title VII applies to trans employees pursuing transition:
In an exchange with Cole, Gorsuch said “I’m with you” on the text of the statute, adding that it it was “really close.” But he expressed reservations about other elements of the case, warning of “massive social upheaval” should the Supreme Court rule for Cole’s client. “That’s an essentially legislative decision,” he added.
Newest and arguably most controversial appointee, Brett Kavanaugh, reportedly asked no questions that might reveal his thinking during the arguments.
Today’s decision by the Supreme Court comes after years of cumulative work on the state level by attorneys and legal strategists who have variously argued in different court cases addressing sexual orientation, gender identity and gender conformity in the workplace that the prohibition against discrimination on the basis of sex enshrined by the Civil Rights Act of 1964 applies to openly gay, transgender and/or gender nonconforming people. The gist of their argument has been that firing, restricting hours of, mistreating or refusing to hire someone because of their gender presentation is sex discrimination because it’s dependent upon their sex as assigned at birth — a cis man wearing a button-down and tie to work being fine while an AFAB person wearing the same thing isn’t is discrimination based on their sex. Similarly, the argument goes, discrimination against people with a same-sex partner is dependent upon their sex; the status of “having a wife” is neutral, and only becomes a category subject to discrimination when the sex of the person who has a wife is female. While several different lower courts agreed with this interpretation, the Supreme Court is the final arbiter of whether that legal interpretation will stand as federal law.
An obvious and primary target of the ways discrimination based on gendered presentation at work are enacted is trans people as a demographic — like Aimee Stephens, the trans woman at the center of R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. The October 8th decision marks the first time that a case related to trans rights has been heard by the Supreme Court (the case of Gavin Grimm was expected by many to be that moment, but the case was sent back down to a lower court after the Trump administration rescinded an Obama-era guideline on accommodations for trans students in public schools). Stephens’ attorney, Chase Strangio, writes in an op-ed for the Washington Post that:
Tuesday may feature the first time the word “transgender” is spoken during oral arguments in the highest court in the United States. And when the justices look out from the bench and see my co-counsel and me at counsel table, it may be the first time they have looked at transgender attorneys defending our own existence before their powerful bench.
The two other major cases forming the backbone of today’s case in SCOTUS is that of Gerald Bostock, a child welfare coordinator who lost his job within months of joining a gay softball league, and Donald Zarda, who lost his job as a skydiving instructor after telling a client he was “100% gay.” “Within months, I was fired for being gay. I lost my livelihood. I lost my medical insurance, and at the time I was fighting prostate cancer. It was devastating,” Bostock told NPR. Bostock, Zarda and Stephens sued their employers under Title VII, arguing that the termination of their jobs was on the basis of sex. When their cases were first argued, the Supreme Court looked radically different than it does now; the appointments of Neil Gorsuch and Brett Kavanaugh under the Trump administration have meant that the Supreme Court responsible for today’s decision is much farther to the right than it may have been under a different administration (or if the Obama administration had been able to make its own appointment instead of Gorsuch while Obama was still in office, or if the accusations of sexual assault against Kavanaugh had been taken seriously; the list goes on).
If the court rules that Title VII’s language about sex discrimination applies only to what they’re calling “biological sex” (an obviously flawed term) and not to sexual orientation, trans identity or gender presentation, it will mean a major legal tenet which has underpinned LGBT legal protections and could have strengthened them in the future is now inaccessible to us, and that federal protection for LGBT and gender-nonconforming people doesn’t exist. It will also likely have ripple effects in interpretation of law around LGBT civil rights outside the strict confines of the workplace, a fact the lawyer opposing Aimee Stephens grossly referenced when he argued “…that transgender women will work at rape shelters for women.” and claimed “[David Cole]’s wrong to say that this case isn’t about showers and overnight facilities and sports.” Future campaigning for legal protections for LGBT people would have to rely on legislature, rather than calling on constitutional or civil rights, and are resigned to forever being at the whim of state and federal legislative bodies.
Even if the court rules that the protections of established civil rights don’t apply to LGBT people, it will not change the fact that the LGBT community will continue working to protect and sustain itself; that we will continue to fight to protect ourselves and each other. As Chase Strangio, Aimee Stephens’ lawyer, tweeted: “We bring our beautiful selves into that courtroom and then we continue fighting outside every day after.”
Good morning. Today is the day. We bring our beautiful selves into that courtroom and then we continue fighting outside every day after. We are here. No one can take that away. #RiseUpOct8 ✊🏻
— Chase Strangio (@chasestrangio) October 8, 2019